DECISION
This matter comes before the Court on the motions for summary judgment of the Defendants, The Education Resources Institute (“TERI”), City University of New York (“CUNY”), and the United States Department of Education (“DOE”), in this adversary proceeding brought by the Plaintiff, Gus Benjumen (“Mr. Benjumen” or “Plaintiff”), seeking discharge of his student loans based on “undue hardship” pursuant to of 11 U.S.C. § 523(a)(8). For the reasons set forth below, the motions for summary judgment are denied.
Jurisdiction
This Court has jurisdiction of this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(I) and 1334, 11 U.S.C. § 1142, and the Eastern District of New York standing order of reference dated August 28, 1986. This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052.
Facts
The following facts are undisputed.
The Plaintiff, who is currently 64 years old, was diagnosed with bipolar disorder no later than 1992. From 1996 through 2005, and during the fall 2006 semester, he was enrolled as a full-time student at the City College of New York (“City College”), a senior college of CUNY, except for one semester in 2005, in which he attended Kingsborough Community College. The Plaintiff financed his education with student loans, which were in amounts greater than required to pay for tuition, as he also used them to cover living expenses for himself and his family. 1 The Plaintiff testified that he received his undergraduate degree with honors from City College in February 2000. (Benjumen Tr., 2 21:14-16.)
From 2000 through 2006, the Plaintiff was employed by the New York City Department of Education (the “NYCDOE”) as an occasional per diem substitute teach
In early 2006, he was appointed by the NYCDOE to a position as a substitute teacher at Grady High School in Brooklyn, New York. On May 8, 2006, the Plaintiff quit his position at Grady High School, which resulted in an unsatisfactory rating on his record by the NYCDOE. The Plaintiff claims that the unsatisfactory rating prevents him from obtaining a new teaching position with the NYCDOE. Through his union representative, the Plaintiff appealed his unsatisfactory rating. By letter dated January 29, 2009, he was informed that his appeal was denied (the “Denial Letter”). On December 10, 2008, prior to receiving the Denial Letter, the Plaintiff testified at his deposition that if his appeal of his unsatisfactory rating were successful, and he obtained reinstatement, he intended to resume work as a teacher. (Benjumen Tr., 9:2-4; 77:14-17.)
On September 1, 2007, the Plaintiff received his full-time teaching license. Despite sending job application letters and resumes to approximately 100 schools in and around New York City (Benjumen Tr., 68:9-70:3.), he has not been able to obtain a position. The Plaintiff did not call any school to follow up on the status of his job applications. He testified at his deposition that he expects to continue his search for employment as a teacher in the New York school system. (Benjumen Tr., 73:14-19.) The Plaintiff has not sought employment outside the field of teaching since 2000.
The Plaintiff testified that on June 21, 2006, he went to the emergency room at Coney Island Hospital and was admitted to the psychiatric unit. (Benjumen Tr., 43:23-25.) He also testified that he suffers from an enlarged heart and high blood pressure. (Benjumen Tr., 9:2-4; 77:14-17.) The Plaintiff has applied for Social Security disability benefits, but the Social Security Administration (“SSA”) denied the Plaintiffs application.
On January 19, 2007, the Plaintiff filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. On April 24, 2007, the Plaintiff received a discharge of his debts. On August 13, 2007, the Plaintiff commenced this adversary proceeding, seeking a determination that his student loans wei*e dischargeable under 11 U.S.C. § 523(a)(8). TERI, CUNY, and DOE filed Answers and Affirmative Defenses to the Complaint, and subsequently filed the instant motions for summary judgment, asserting that the Plaintiff could not prove that repayment of the loans would create an undue hardship for him as required by 11 U.S.C. § 523(a)(8). The Plaintiff filed a response pro se and an amended response through pro bono counsel.
In connection with this litigation, the Plaintiff was evaluated by Mark V.F. Johnson, Ph.D. (“Dr.Johnson”), a psychologist and certified rehabilitation counselor specializing in the evaluation, counseling, job placement and training of persons with disabilities. Dr. Johnson performed an interview and several tests to assess Mr. Benjumen’s capacity to return to work.
Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Fed. R. Bankr.P. 7056;
Celotex Corp. v. Catrett,
Here, certain material facts, as set forth below, are in dispute, and summary judgment must therefore be denied.
Discussion
Dischargeability under 11 U.S.C. § 523(a)(8)
The Bankruptcy Code excepts from discharge any debt insured or guaranteed by a governmental unit as an educational benefit, unless the debtor can show that repayment of the debt will impose an undue hardship on the debtor and the debt- or’s dependents. 11 U.S.C. § 523(a)(8). To determine whether a debtor will suffer “undue hardship”, the Second Circuit delineated a three-prong test in
Brunner v. New York State Higher Educ. Servs. Corp.,
(1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans.
Id.
The debtor must prove all three prongs by a preponderance of the evidence in order to establish undue hardship.
King v. Vermont SPudent Assistance Corp. (In re King),
If it is determined that the Plaintiff has submitted evidence to support his claim, summary judgment is not appropriate, as the court must make a factual determination, and weigh the evidence submitted by both parties to determine whether repayment of the loans will result in an undue hardship.
Wetzel v. New York State Higher Educ. Services Corp.,
1. The Second Brunner Prong-Future Prospects
The second prong of the
Brunner
Test requires that the Plaintiff show that his current financial difficulties will likely persist for the life of the repayment period of the student loans.
Brunner,
A. Defendants argue that Plaintiff has not established that bipolar disorder is untreatable.
The Defendants argue that a reasonable fact finder cannot conclude that Mr. Ben-jumen’s current state of affairs will likely persist, because he has failed to present evidence that his medical condition is not treatable, and because he does not treat his bipolar disorder with medication. The Defendants cite the deposition testimony of the Plaintiffs expert, Dr. Johnson, who testified that for persons suffering from bipolar disorder, medication provides the best chance for a productive life and family relationships. (Johnson Tr.,
3
42:6-7; 161:21-25; 162:1-4.) The Defendants also point to the report of a psychiatrist at Coney Island Hospital (the “Coney Island Medical Report”
4
), stating that the Plaintiff refused medications recommended and prescribed by several physicians. Additionally, the Defendants cite to
Nash v. Connecticut Student Loan Fndtn. (In re Nash)
Nash is distinguishable from the instant case. There, the court’s finding of insufficient evidence to show that the debtor’s unemployability would likely persist, was not on a motion for summary judgment, but after a trial on the issues underlying the Brunner prongs. Furthermore, the debtor in Nash submitted Disability Deferment Request Forms signed by one of her physicians as evidence of her bipolar diagnosis, which included a “notation that ‘this disability is temporary.’ ” Id. No such evidence that the Plaintiffs condition is temporary has been submitted here. Finally, unlike the debtor in Nash, Mr. Benjumen, at 64, is near retirement age. Mr. Benju-men, moreover, has offered expert testimony as to the improbability of future employment given his condition and age.
Furthermore, Mr. Benjumen testified at his deposition that he does not always take medications prescribed to him for his bipolar disorder because of side effects associated with high blood pressure. (Benjumen Tr., 79:3-4.) This is consistent with his deposition testimony that he suffers from an enlarged heart and high blood pressure. (Benjumen Tr., 9:2-4; 77:14-17.) The Coney Island Medical Report, which noted that Mr. Benjumen was taking medication for high blood pressure, substantiates Mr. Benjumen’s deposition testimony. It is not disputed that the Plaintiff has been diagnosed with bipolar disorder, has an enlarged heart, and high blood pressure. Moreover, Mr. Benjumen testified at his deposition that he is in fact taking two psychiatric medications for his “maniac effective depressive disorder”, and that he sees a psychiatrist, Dr. Stern, monthly to fill the two prescriptions. (Benjumen Tr., 9:18-24; 82:1-9.)
This record reflects multiple factual issues, such as whether Mr. Benjumen is taking psychiatric medications and whether his ability to do so is limited by other health problems, and whether, even if his disorder were treated, he would be likely to obtain future employment given his age and employment history. It should be noted that the Defendants have not offered any expert or other evidence showing that Mr. Benjumen’s level of functioning or em-ployability would in fact improve with medication.
B. Medical evidence and the admissibility of Dr. Johnson's testimony.
The Defendants argue that Dr. Johnson is not qualified to offer an expert opinion regarding the Plaintiffs bipolar disorder. The record is clear, however, that Dr. Johnson’s opinion is not offered with respect to the Plaintiffs medical condition and prognosis, but rather, to show that his employment prospects are unlikely to improve given the Plaintiffs age, bipolar disorder, and present level of functioning. Moreover, courts have held that medical testimony is not required to satisfy the second prong of the Brunner Test, especially where the debtor (like Mr. Benju-men) has scarce financial resources.
Requiring that a bankruptcy debtor provide corroborative medical evidence beyond the debtor’s own testimony in order to sustain the evidentiary burden for a hardship discharge of a student loan on medical grounds is likely to prevent pro se debtors from receiving the relief to which they are entitled because they ‘cannot afford to hire medical experts to testify to the effect of their disease on their earning capacity.’
Jackson,
Mr. Benjumen offers as evidence Dr. Johnson’s opinion in support of his contention that his current financial state of affairs, and inability to secure employment, will persist throughout a significant portion of the repayment period. Dr. Johnson testified that given Mr. Benjumen’s age in conjunction with his present level of functioning, it is highly unlikely that his vocational prospects will improve. (Johnson Tr., 36:14-17; 157:3-11.)
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides:
If a specific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702.
The proponent of expert testimony bears the burden of establishing admissibility under Rule 702 by a preponderance of the evidence.
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Dr. Johnson is a licensed psychologist and a certified rehabilitation counsel- or, specializing in vocational rehabilitation. (Johnson Tr. 10:14-17; 11:9-16; 19:16; 24:14.)
Compare Elcock v. Kmart Corporation,
Dr. Johnson’s testimony regarding Mr. Benjumen’s vocational prospects and his employability is well within his range of expertise and supports the Plaintiffs position.
King,
The Defendants seek to exclude Dr. Johnson’s opinions on grounds that they are not based on proper methodologies and therefore, not reliable. In Daubert, the Supreme Coui't outlined four factors a court may consider in determining reliability under Rule 702:
(1) whether the theory or technique relied on has been tested;
(2) whether the theory or technique has been subjected to peer review and pubi-cation; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation in the case of a particular scientific technique; and (4) whether the theory or method has been generally accepted by the scientific community.
Donnelly v. Ford Motor Co.,
The
Daubert
factors do not constitute a “definitive checklist or test”.
Daubert,
The Defendants attack the reliability of Dr. Johnson’s testimony, arguing that Dr. Johnson: (1) did not perform a full vocational evaluation on the Plaintiff; (2) did not examine local employment conditions; (3) did not assess what other types of employment might be available to the Plaintiff; and (4) did not reference the U.S. Department of Labor’s Dictionary of Occupational Titles. The Defendants fail, however, to provide any authority that requires the exclusion of Dr. Johnson’s testimony based on these objections.
Dr. Johnson testified that he based his opinion on a review of Mr. Benjumen’s medical records and past psychological evaluations, results on multiple tests he gave to Mr. Benjumen, a test application, a six and a half hour interview, as well as twenty years of experience. (Johnson Tr., Ill: 17-20; 157:3-11.) Dr. Johnson explained that a full vocational evaluation, which takes several weeks to perform, would not be helpful in connection with the opinion he offered regarding Mr. Benju-men’s ability to find work, given his age and level of functioning. (Johnson Tr., 111:23-25; 112:1-24).
The Defendants argue that Dr. Johnson’s opinion lacks reliability because Dr. Johnson did not examine local employment conditions, assess other types of employment that might be available to the Plaintiff, and reference the U.S. Department of Labor’s Dictionary of Occupational Titles. In support of their contention, the Defendants cite
Jones v. UPS, Inc.,
No. 06-cv-2143-JPO,
In any event, under the standard articulated by the Second Circuit, admission of Dr. Johnson’s expert opinion is appropriate. “The Second Circuit has adopted a rather broad standard for the admissibility of expert witness testimony.”
Bacardi,
Although expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony.
Id. (quoting Boucher v. United States Suzuki Motor Corp.,
At trial, the Defendants may challenge any purported deficiencies in
C. Social Security Disability
The Defendants point out that unlike the Plaintiff, the debtors in
Nash,
It is undisputed that the SSA denied Mr. Benjumen’s claim for Social Security disability benefits. However, the SSA’s determination with respect to disability is not conclusive to establish that a debtor is not entitled to a discharge under 523(a)(8).
See Hertzel v. Educ. Credit Mgmt Corp. (In re Hertzel),
For all of these reasons, summary judgment is denied on the second prong of the Bnmner Test.
2. The Third Brunner Prong — Good Faith
The third prong of the
Bnmner
Test requires that the Plaintiff show that he made a good faith effort to repay his student loans.
Brunner,
In evaluating good faith, the court considers a number of factors regarding the Plaintiff’s efforts to repay student loans. These include the Plaintiffs actions to maximize his income and minimize his expenses,
Pobiner v. Educ. Credit Mgmt. Corp. (In re Pobiner),
The Defendants contend that the Plaintiff cannot demonstrate good faith in repaying his student loans, based on his failure to maximize his income and minimize his expenses; his failure to make payments towards the loans over an extended period of time; and his failure to take advantage of alternative payment options prior to filing for bankruptcy, only six months after completing his course credits.
A. The Plaintiff’s efforts to maximize income and minimize expenses
(i) Maximizing Income
The Defendants submit that the Plaintiff cannot demonstrate a good faith effort to repay under the
Brunner
Test, because the Plaintiff has not sought employment outside the teaching field, and because he voluntarily quit his substitute teaching position in 2006.
Stern v. Educ. Res. Inst. Inc. (In re Stern),
Mr. Benjumen testified that he sent job application letters and resumes to approximately 100 schools in and around New York City. (Benjumen Tr., 68:9-70:3.) He also applied, in 2007, to the NYCDOE to attend the Brooklyn Citywide Career Fair, as well as to Carney Sandoe & Associates, a search firm for independent schools, but was rejected by both. Mr. Benjumen argues that he cannot secure employment outside the teaching field because he lacks additional skills that would afford him any opportunities outside of teaching. He explained at his deposition that he had not applied to jobs outside the teaching field because his only other experience was as a parking lot attendant, and at age 64, he would not be likely to be hired for such a job. (Benjumen Tr. 70:9-13.) The sufficiency of Mr. Benjumen’s efforts to secure employment, including whether he has additional skills to secure employment outside the teaching field, is a factual inquiry that cannot be decided here as a matter of law.
The Defendants further argue that by voluntarily quitting his position as a substitute teacher at Grady High School in 2006, the Plaintiff failed to maximize his income. This argument fails in the context of these summary judgment motions. Mr. Benju-men testified that he quit his job because
(ii) Minimizing Expenses
The Defendants argue that the Plaintiff failed to minimize his expenses while he was in school, using portions of the funds for living expenses and making unnecessary expenditures. Mr. Benjumen testified that from 2000 to the present, he has experienced manic episodes in which he “feels like spending a lot of money and [is] king of the world,” and that he has overspent on “many, many, many” occasions. (Benjumen Tr. 77:19-20 & 97:14-17.) The Defendants also cite the Plaintiffs statement in deposition testimony that he negotiated to buy a boat for $4,000, and that such a purchase was not consistent with minimizing expenses. (Benjumen Tr. 96:21-25.)
The Plaintiff, however, explained that his attempt to purchase the boat took place during “one of those mania moods that I was affected by.” (Benjumen Tr. 96:25; 97:1.) Moreover, the purchase of the boat never actually occurred. (Benju-men Tr. 35:12-13.) He also testified that his overspending took place during manic episodes and consisted of credit card purchases for “extra dinners, extra things”: “[B]ecause my frugal living is at the minimum .... having taken my wife for a dinner or myself for a dinner would be considered an over expense.” (Benjumen Tr. 97:18-25, 98:1-2.)
This Court cannot as a matter of law find that the Plaintiff acted in bad faith in his efforts to repay his loans because of a failed attempt to purchase a boat during one of the manic phases of his disorder. Nor can the Plaintiffs deposition testimony concerning unspecified overspending provide a basis for summary judgment, in the absence of evidence of the magnitude of the expenses and the circumstances under which they were incurred.
B. Loan repayment history
The Defendants argue that the Plaintiffs lack of good faith is evidenced by his failure to make payments towards his school loans over an extended period of time. It is undisputed that the Plaintiff made payments on his school loans from July, 2000 through May, 2006, when he lost his job. The Plaintiff contends that he acted in good faith by making payments towards his student loans when he had the money to do so. Whether or not the payments made by the Debtor were sufficient to demonstrate good faith is a factual issue that cannot be determined on summary judgment. “A debtor’s good faith efforts to repay student loans must be interpreted in light of his ability to pay.”
Waterson v. Pa. Higher Educ. Assistance Agency (In re Waterson),
C. Efforts to negotiate or enroll in alternative repayment plan before filing for bankruptcy
The Defendants argue that the Plaintiff made no effort to seek alternative repayment options before filing for bankruptcy less than six months after completing his credits at City College. (Benjumen Tr. 92-93.) They note that invitations made by the Defendants to the Plaintiff to participate in repayment plans, including the Income Contingent Repayment Plan (“ICRP”) offered by the DOE, have been rejected.
While a debtor’s failure to take advantage of alternative repayment plans may be a significant factor in determining whether or not the debtor made a good faith effort to repay his or her loans, “there is no per se rule that failure to agree to an [alternative repayment] plan establishes bad faith.”
Zook v. Edfinancial Corp., et al.,
Moreover, the Defendants’ argument ignores the fact that, by enrolling in an alternative repayment plan, Mr. Benjumen would incur a potentially nondischargeable tax obligation pursuant to 11 U.S.C. § 523(a)(1), for the amounts forgiven under the repayment plan.
Allen,
Moreover, the bankruptcy court’s duty to determine the dischargeability of a debtor’s student loans has not been “delegated to nonjudicial entities]” such as the Defendants.
Johnson v. Educ. Credit Mgmt. Corp. (In re Johnson),
In short, multiple issues of fact appear in the record precluding a finding of lack of good faith. Summary judgment is therefore inappropriate on this issue.
For <he foregoing reasons, the Defendants motions for summary judgment are denied. A separate order shall issue herewith.
Notes
. According lo the Plaintiff’s statement of facts, the loans, with accrued interest, totaled $166,363.00 as of the petition date.
. Citations to "Benjumen Tr.” refer to the transcript of Plaintiff's deposition testimony given on December 10, 2008.
. Citations to "Johnson Tr.” refer to the transcript of Dr. Johnson’s deposition testimony given on December 19, 2008.
. The Coney Island medical Report was submitted by both parties as Exhibits.